SANYASI GAIN Vs. EMPEROR

JUDGEMENT

(1.) This is a reference under Section 374, Criminal Procedure Code, for confirmation of the sentence of death passed on Sanyasi Gain in consequence of his convictions on two charges under Section 302. In the same trial he was charged and tried with assessors along with ten others under Section 120-B read with Section 395, Indian Penal Code, and he and nine others were convicted on that charge. Objection has been taken to the trial on the ground of misjoinder of charges inasmuch as occurrences extending over a period of 16 months are included in the charges and these occurrences cannot be said to have formed part of the same transaction so as to come under the provisions of Section 235, Criminal Procedure Code. It is urged further that even if the two murders can be said to have taken place in the course of the same transaction, the learned Judge did not rightly exercise his discretion in including them in the same trial as the jury were likely to be prejudiced by the joint trial. As regards the first point, the prosecution case is, that all those criminal occurrences referred to in the evidence were part of one transaction inasmuch as they all took place in furtherance of a conspiracy to commit dacoities. They consisted of dacoities, the theft of boats and the rescue of members of the gang by an attack on the Police and the commission of murder in two of the dacoities. It is suggested that the theory of conspiracy has been invented by the prosecution merely in order to connect these occurences together. It is true that the only direct evidence of a conspiracy is the statement of the approver Aswini in cross-examination as follows: We conspired only once in Behari's house about the aims and the work of the gang. After that we committed the dacoities from time to time without further consultations.

(2.) Thus the evidence of deliberate conspiracy is very thin, but if the evidence that the same gang of men systematically committed a series of dacoities by similar methods on each occasion is believed, there can be no doubt that there must have been some understanding or agreement between them that when summoned by the organisers they would unite together to commit these dacoities. Thus every series of gang robberies committed by the same gang might be said to be the outcome of a criminal conspiracy. Moreover, on behalf of the prosecution, cases have been referred to in which it was held that in order to legalize such a trial it is only necessary to show that there was a bona fide accusation of conspiracy embracing all the criminal acts; it is not necessary for the prosecution to establish that in fact there was such a conspiracy. The latest of these is the case in Rash Behari Shaw V/s. Emperor . In this case it was held that where there is a charge of conspiracy having one or more objects in view, the offence of conspiracy and acts committed in pursuance of it come under one transaction, and that in judging of the validity of a trial, the test to be applied in the accusation made and not the result of the trial. The matter must be looked at as it appeared to the Magistrate when framing charges. It was also held that, where the irregularity, if any in the joint trial of several persons at one and the same trial is not one which in the actual facts of the case caused any prejudice to the accused or by itself entailed any failure of justice, it is no ground for quashing the proceedings, the more so, when no protest or complaint is made by or on behalf of the accused against the course adopted by the Magistrate.

(3.) In the present case there was apparently no protest or complaint against the joint trial. The same views were expressed in Abdul Salim V/s. Emperor 49 C. 573 : 69 Ind. Cas. 145 : A.I.R. 1922 Cal. 107 : 23 Cr.L.J. 657 : 26 C.W.N. 680 : 35 C.L.J. 279; Satyanarain Mohata v. Emperor and Abdullah V/s. Emperor A.I.R. 1924 All. 233 : 92 Ind. Cas. 145 : 27 Cr.L.J. 193. In G. Mallu Dora V/s. Emperor it was held that to make the joint trial legal, the accusation must be a real one and not a mere excuse for a joinder of charges which cannot otherwise be joined. With, these views we would respectfully concur. There is a danger, too, that a conspiracy charge may be introduced in order to make the case triable with the aid of assessors and we are inclined to suspect that this may have had something to do with the framing of the conspiracy charge in the present case In this case, however, the circumstantial evidence appears to support the approver's statement as to the existence of a conspiracy, and there is evidence that a number of the same persons took part in these occurrences and were probably parties to a conspiracy to carry them out. This evidence is sufficient to show that the inclusion in the one trial of the 18 occurrences extending over 16 months referred to in the judgment of the learned Judge was not illegal. In such cases evidence can be given of all criminal acts done in pursuance of the conspiracy. An attack on the Police in order to rescue members of the gang was probably made in order to prevent the gang from being broken up, and though there is a suggestion that the murder at Durbadanga was the outcome of enmity on the part of Sanyasi against Praneswar (the man who was shot), there can be little doubt that this murder was committed in order to facilitate the dacoity, and the murder of Durga Sen in the Chhotomullakhali River dacoity was with the same object. ?We hold, therefore, that the joint trial was not illegal. The vital question is, therefore, whether prejudice has been caused to Sanyasi or any of the other accused by the joint trial. After careful consideration of this point we are definitely of opinion that Sanyasi has been prejudiced by the trial of the two murder charges against him along with the charge of conspiracy, but we do not think any of the accused have been prejudiced by their joint trial on the conspiracy charge. It is urged by the learned Advocate for the Grown that the verdict of the jury should not be set aside unless it is shown that in fact the jury were prejudiced. In the nature of things it is not possible to say whether in fact they were actually prejudiced but we think it is quite sufficient that there is every probability that they were influenced in each case against him by the evidence not strictly relevant to the murder charge introduced by the trial under Secs.120 B, 395, Indian Penal Code, and this, inspite of the rather naive warning by the learned Judge that in considering the guilt of Sanyasi on the murder charges, they should confine themselves to the evidence of murder and not allow themselves to assume that if he is proved to be a dacoit, he must also be a murderer, and that if he is guilty of one murder he must be guilty of all the murders with which he is charged.